State v. McWilson

[Cite as State v. McWilson, 2022-Ohio-170.]

IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
PORTAGE COUNTY

STATE OF OHIO, CASE NO. 2021-P-0031

Plaintiff-Appellee,
Criminal Appeal from the
-v- Court of Common Pleas

MARTISE L. MCWILSON,
Trial Court No. 2020 CR 00786 C
Defendant-Appellant.

OPINION

Decided: January 24, 2022
Judgment: Affirmed and remanded

Victor V. Vigluicci, Portage County Prosecutor, and Theresa M. Scahill, Assistant
Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellee).

Nathan A. Ray, 137 South Main Street, Suite 201, Akron, OH 44308 (For Defendant-
Appellant).

MATT LYNCH, J.

{¶1} Defendant-appellant, Martise McWilson, appeals from his sentence for

Felonious Assault in the Portage County Court of Common Pleas. For the following reasons,

we affirm the judgment of the lower court but remand with instructions for the lower court to

issue a nunc pro tunc entry consistent with this opinion.

{¶2} On October 11, 2020, McWilson was indicted by the Portage County Grand

Jury for Attempted Aggravated Murder (Count One), a felony of the first degree, in violation

of R.C. 2923.02 and 2903.01; Attempted Murder (Count Two), a felony of the first degree,

in violation of R.C. 2923.02 and 2903.02; Felonious Assault (Count Three), a felony of the
second degree, in violation of R.C. 2903.11; Discharge of a Firearm On or Near Prohibited

Premises (Count Four), a felony of the third degree, in violation of R.C. 2923.162; Improper

Handling of a Firearm in a Motor Vehicle (Count Five), a felony of the fourth degree, in

violation of R.C. 2923.16; and Having Weapons While Under Disability (Count Six), a felony

of the third degree, in violation of R.C. 2923.13. Counts One through Five had

accompanying firearm specifications and Counts One through Three also had repeat violent

offender specifications.

{¶3} McWilson entered a plea of guilty to Felonious Assault as charged in the

indictment, which related to a drive-by shooting incident in Ravenna. After reviewing the

rights waived by entering a guilty plea, the trial court accepted the plea and found him guilty

of the offense. This was memorialized in a January 20, 2021 Judgment Entry. A nolle

prosequi was entered on the remaining counts of the indictment and the specifications.

{¶4} A sentencing hearing was held on February 22, 2021. Defense counsel

requested that the sentence be ordered concurrent to a five-year prison sentence imposed

for prior Burglary and Arson convictions in Portage County Court of Common Pleas Case

Nos. 2019 CR 0267C and 2019 CR 0349. Counsel observed that McWilson was a young

man from a good family. McWilson apologized for the offense and letting down the court,

stating that he had good intentions but had hung out with the wrong crowd. The State made

no recommendation as to the sentence.

{¶5} The court emphasized that it had given McWilson opportunities with probation

for past offenses but he had “thrown them away.” It observed that the victim could have

been killed in the shooting and that McWilson had escalated his behavior. The court ordered

that he serve a prison term of four to six years, consecutive with the sentence imposed in

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Case Nos. 2019 CR 0267C and 2019 CR 0349. It found that consecutive sentences are

necessary to protect the public from future crime, are not disproportionate to the seriousness

of the conduct and danger posed to the public, that the offense was committed while

McWilson was on community control, and that his criminal history demonstrated consecutive

sentences are necessary to protect the public from future crime. The court issued an Order

and Journal Entry on February 23, 2021, memorializing the sentence. Therein, it made the

first two findings discussed above (necessary and disproportionate), as well as that the

offense was committed as part of one or more courses of conduct and McWilson’s history

of criminal conduct demonstrates consecutive sentences are necessary to protect the public

from future crime.

{¶6} McWilson timely appeals and raises the following assignments of error:

{¶7} “[1.] The trial court committed reversible and plain error when it sentenced

defendant to consecutive terms without strictly complying with R.C. 2929.14(C).

{¶8} “[2.] The trial court committed reversible and plain error when it failed to

properly consider the sentencing factors as set forth in O.R.C. 2929.11 and 2929.12.”

{¶9} In his first assignment of error, McWilson argues that the consecutive

sentences are invalid because the findings made at the sentencing hearing were

inconsistent with those contained in the sentencing entry.

{¶10} “The court hearing an appeal [of a felony sentence] shall review the record,

including the findings underlying the sentence or modification given by the sentencing

court.” R.C. 2953.08(G)(2). “The appellate court may increase, reduce, or otherwise modify

a sentence that is appealed under this section or may vacate the sentence and remand the

matter to the sentencing court for resentencing * * * if it clearly and convincingly finds * * *

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[t]hat the record does not support the sentencing court’s findings under division * * * (C)(4)

of section 2929.14, or * * * [t]hat the sentence is otherwise contrary to law.” R.C.

2953.08(G)(2)(a) and (b).

{¶11} “Under R.C. 2929.14(C)(4), a sentencing court is required to make three

distinct findings in order to require an offender to serve consecutive prison terms: (1) that

consecutive sentences are ‘necessary to protect the public from future crime or to punish

the offender’; (2) that consecutive sentences are ‘not disproportionate to the seriousness of

the offender’s conduct and to the danger the offender poses to the public’; (3) ‘and * * * also’

that one of the circumstances described in subdivision (a) to (c) is present.” (Citation

omitted.) State v. Claar, 11th Dist. Portage No. 2019-P-0091, 2020-Ohio-1330, ¶ 11.

Subdivisions (a) to (c) require a finding that the offender committed the offense while “under

a sanction imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code”;

“[a]t least two of the multiple offenses were committed as part of one or more courses of

conduct” which caused harm so great a single prison term would not reflect the seriousness

of the conduct; or “[t]he offender’s history of criminal conduct demonstrates that consecutive

sentences are necessary to protect the public from future crime by the offender.” To impose

consecutive terms, the court “is required to make the findings mandated by R.C.

2929.14(C)(4) at the sentencing hearing and incorporate its findings into its sentencing

entry, but it has no obligation to state reasons to support its findings.” State v. Bonnell, 140

Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 37.

{¶12} There is no question that the trial court made the first two R.C. 2929.14(C)(4)

findings relating to future crime and proportionality both at the sentencing hearing and in the

entry. The lack of consistent findings alleged relates to R.C. 2929.14(C)(4)(a) through (c).

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At the sentencing hearing, the court found (a) and (c) to be applicable, stating that the

offense was committed while McWilson was on community control and that his criminal

history demonstrated the sentences were needed to protect the community. In its entry,

however, it made the (b) and (c) findings, stating that the offenses were part of a course of

conduct and the sentences were needed to protect the community.

{¶13} We initially note that the court made the R.C. 2929.14(C)(4)(c) finding

regarding the protection of the community both at the hearing and in the entry. This finding

alone would be sufficient to support the consecutive sentence, as “the plain language of the

statute requires that only one of these three elements [R.C. 2929.14(C)(4)(a) through (c)]

need be found, which is evident from the statute’s use of the word ‘any.’” State v. Wauer,

11th Dist. Trumbull No. 2016-T-0043, 2017-Ohio-1337, ¶ 27. This court has held that, where

the trial court found multiple grounds under (C)(4)(a) through (c) to support a consecutive

sentence, “if the trial court’s finding under R.C. 2929.14(C)(4)(b) was erroneous, any such

error was harmless since the trial court also made a finding under R.C. 2929.14(C)(4)(c) that

is supported by the record.” State v. Russell, 11th Dist. Lake No. 2019-L-138, 2020-Ohio-

3243, ¶ 15. Russell differs from the present matter in that it related to whether the trial

court’s findings were supported by the record, whereas here we are faced with the

inconsistent nature of the findings made at the hearing versus those made in the entry. In

conceding this issue, the State asserts that the proper remedy is a limited remand for the

purpose of ordering the trial court to issue a nunc pro tunc entry incorporating the correct

finding made at the hearing and removing the finding not made at the hearing. Given the

lack of clarity created by the court’s actions and to remedy the inconsistency, we decline to

find the harmless error analysis applicable here and will address the proper remedy for the

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error.

{¶14} As to the R.C. 2929.14(C)(4)(b) finding made in the entry, that the offense was

part of a course of conduct, it was not made at the hearing and there is no question that it is

inapplicable to the present matter. McWilson was convicted of and sentenced for only one

offense which was not asserted to be part of a course of conduct. In similar circumstances,

where the court made a finding in the entry that was not supported by the record nor made

at the hearing, this court found the appropriate remedy is to “remand this case for the limited

purpose of having the trial court issue a new sentencing entry omitting the finding.” State v.

Barajas-Anguiano, 11th Dist. Geauga No. 2017-G-0112, 2018-Ohio-3440, ¶ 22.

{¶15} As to the finding that consecutive sentences were justified due to McWilson’s

commission of the crime while on community control, this finding was made at the

sentencing hearing but not in the entry. In similar circumstances, where the court made a

R.C. 2929.14(C)(4)(c) finding at the sentencing hearing but the finding did not appear in the

entry, this court found that it “must remand this matter for the trial court to issue a nunc pro

tunc sentencing entry, incorporating the R.C. 2929.14(C)(4) findings made at the sentencing

hearing.” State v. Stewart, 11th Dist. Trumbull No. 2017-T-0063, 2018-Ohio-1678, ¶ 19

(affirming the sentence but remanding to correct the error).

{¶16} McWilson requests that this court remand for a new sentencing hearing. The

appropriate remedy is not a resentencing hearing but an order for the lower court to correct

its sentencing entry since the court made the necessary findings at the hearing but failed to

properly state them in the entry. See Id. at ¶ 18 (“clerical mistakes in the sentencing entry

can be corrected via a nunc pro tunc entry [while] a trial court’s failure to make the R.C.

2929.14(C)(4) findings at the sentencing hearing renders the sentence contrary to law” and

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requires resentencing). On remand, we instruct the court to issue a nunc pro tunc entry

correcting its errors consistent with this opinion, removing the R.C. 2929.14(C)(4)(b) finding

and including the (C)(4)(a) finding.

{¶17} McWilson also argues that the trial court’s consecutive sentencing findings

were “not supported by the evidentiary record.”

{¶18} In relation to findings necessary to order consecutive sentences, this court has

explained that “the court of appeals * * * must clearly and convincingly find that the record

does not support the court’s findings,” a standard characterized as “extremely deferential.”

(Citation omitted.) State v. Guth, 11th Dist. Portage No. 2015-P-0083, 2016-Ohio-8221, ¶

23, quoting State v. Rodeffer, 2d Dist. Montgomery Nos. 25574, et al., 2013-Ohio-5759, ¶

31; State v. Forsell, 11th Dist. Portage Nos. 2019-P-0116, et al., 2020-Ohio-5381, ¶ 15.

“[A]s long as the reviewing court can discern that the trial court engaged in the correct

analysis and can determine that the record contains evidence to support the findings,

consecutive sentences should be upheld.” Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177,

16 N.E.3d 659, at ¶ 29.

{¶19} As to the findings that consecutive sentences are necessary to punish the

offender or protect the public from future crime and that his criminal history necessitates

such protection, the Presentence Investigation Report indicates that, although McWilson is

only twenty years old, he has been convicted of multiple crimes, including Burglary and

Arson. McWilson has committed multiple serious criminal offenses, which supports a finding

that his sentence was necessary to protect the public from future crime.

{¶20} Regarding the finding under R.C. 2929.14(C)(4)(a), that the offense was

committed while the offender was on community control, there is no question that McWilson

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was serving a term of community control for Burglary and Arson in Case Nos. 2019 CR

0267C and 2019 CR 0349 at the time the offense was committed.

{¶21} Finally, as to the finding that the sentences are “not disproportionate to the

seriousness of the offender’s conduct and to the danger the offender poses to the public,”

the record demonstrates the danger for the reasons outlined above. Further, after reviewing

the conduct constituting the offense in the present matter, the lower court emphasized that

McWilson’s behavior had “escalated.” McWilson was accused of shooting out of a vehicle

on a public street at an individual and could have killed the victim. This conduct is

unquestionably serious. This information was part of the record relied upon by the trial court

and justified its finding.

{¶22} As outlined above, it is accurate that the course of conduct finding made in the

entry was not supported by the record but this issue is moot since the trial court is instructed

to remove that finding from its entry.

{¶23} The first assignment of error is with merit, in part.

{¶24} In his second assignment of error, McWilson argues that the record does not

demonstrate the trial court considered the sentencing factors in R.C. 2929.11 and .12.

{¶25} “A court that sentences an offender for a felony shall be guided by the

overriding purposes of felony sentencing” which include protecting the public, punishing the

offender, and promoting rehabilitation of the offender using the minimum sanctions that

accomplish those purposes without burdening government resources. R.C. 2929.11(A).

When imposing a felony sentence, the trial court “has discretion to determine the most

effective way to comply with the purposes and principles of sentencing” and “shall consider

the factors * * * relating to the seriousness of the conduct” and “the likelihood of the offender’s

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recidivism.” R.C. 2929.12(A).

{¶26} “The court is merely to ‘consider’” the foregoing factors as “there is no mandate

for judicial fact-finding.” State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470,

¶ 42; State v. Wilson, 129 Ohio St.3d 214, 2011-Ohio-2669, 951 N.E.2d 381, ¶ 31 (R.C.

2929.11 and 2929.12 do not require a trial court to make specific factual findings). The Ohio

Supreme Court has recently clarified the application of R.C. 2953.08(G)(2) in relation to R.C.

2929.11 and .12 and held that it does not allow an appellate court to vacate a sentence

based on “lack of support in the record for a trial court’s findings” or to “independently weigh

the evidence in the record and substitute its judgment for that of the trial court.” State v.

Jones, 163 Ohio St.3d 242, 2020-Ohio-6729, 169 N.E.3d 649, ¶ 29 and 42.

{¶27} McWilson notes he “is not arguing that the trial court imposed an improper

sentence, rather his argument is that the court never even considered the sentencing factors

of R.C. 2929.11 or R.C. 2929.12.” He contends “there is nothing in the record evincing that

the court considered the seriousness and recidivism factors,” and the court failed to state its

consideration of the factors at the sentencing hearing.

{¶28} A court is not required to “expressly indicate” that it considered the factors

under R.C. 2929.11 and .12 and consideration of appropriate factors “can be presumed

unless the defendant affirmatively shows to the contrary.” State v. Foster, 11th Dist. Portage

No. 2011-P-0087, 2012-Ohio-3744, ¶ 8; State v. Clinton, 153 Ohio St.3d 422, 2017-Ohio-

9423, 108 N.E.3d 1, ¶ 243. “A trial court’s silence regarding the purposes of felony

sentencing and/or the seriousness and recidivism factors is not sufficient to affirmatively

demonstrate that the court did not comply with the statutes.” State v. Claar, 11th Dist.

Portage No. 2020-P-0058, 2021-Ohio-2180, ¶ 11.

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 {¶29} McWilson points to nothing in the record that demonstrates the lower court

failed to consider the sentencing factors. While it did not expressly state them on the record

at the sentencing hearing, it was not required to do so. Nonetheless, the court’s comments

at the sentencing hearing demonstrated it had taken into account McWilson’s criminal record

and conduct in committing the present offense, including the “escalation” of his conduct,

which facts are relevant considerations under the requisite statutes. Further, the court noted

its consideration of the purposes of sentencing in the sentencing entry. In the absence of

an affirmative showing to the contrary, we find no error in the court’s sentence as it relates

to the consideration of these factors.

{¶30} The second assignment of error is without merit.

{¶31} For the foregoing reasons, McWilson’s sentence for Felonious Assault in the

Portage County Court of Common Pleas is affirmed. This matter is remanded with

instructions for the trial court to issue a new sentencing entry consistent with this opinion.

Costs to be taxed against appellant.

CYNTHIA WESTCOTT RICE, J.,

MARY JANE TRAPP, J.,

concur.

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